The 143-page settlement [PDF] is heavily redacted, and no financial terms are revealed. Still, certain parts of the document are revelatory. The document outlines an arbitration process that Apple can initiate if it believes HTC has created a "Cloned Product" that apes Apple's too closely. It gives specific examples of similarities that would be acceptable and others that would be verboten. "Pinch to zoom" is OK; "slide to unlock" is OK, but only if it looks different. As the agreement lays out (p. 33):

A specific graphical slider animation used in an APPLE Mobile Communication Device at the bottom of a display screen to implement a 'slide to unlock' feature could qualify as a Distinctive Apple User Experience; however a different animation (for example a bubble slider) or an animation at another location (for example along the side of a screen) would not be considered substantially similar and would not constitute a Cloned Feature. Functionality and related methods (for example, "pinch to zoom" functionality) will not be considered a Distinctive Apple User Experience.

Bear in mind, that doesn't mean Apple is saying it can't sue over features like "pinch to zoom." These are the terms for a company that has agreed to pay Apple for its patents, not an unlicensed competitor.

Other interesting particulars in the agreement:

There's a specific "no helping the patent trolls" provision (pages 13-14 of the settlement). Increasingly, corporations are taking the "if you can't beat 'em, join 'em" attitude toward patent trolls, giving them patents or other types of assistance and then letting them loose on competitors. This deal specifically bars either party from taking any action to "materially assist in the assertion of Patents in a specific suit, action, or proceeding against the other Party's Covered Products... by a patent holding company, other patent enforcement entity, or a Third Party in which the first Party has an ownership interest." However, "mere membership" in a patent defense group like Allied Security Trust or RPX, or "mere participation" in "patent investment funds such as Intellectual Ventures" won't count.

Certain patents aren't included in this deal. Apple doesn't license any of its design patents, and HTC reserves the rights to nine patents it acquired from Google (they're listed on page 4).

A full list of settled lawsuits is listed in exhibit F-1 (page 39). They include 12 US legal disputes—seven federal court cases, five International Trade Commission cases, and two ITC cases on appeal; 23 German lawsuits; four lawsuits in the UK; five US cases between Apple and HTC-owned S3 Graphics; and six German S3 Graphics cases. That's 50 cases in all.

The parties agreed to total confidentiality about all aspects of the agreement. The text of the press release disclosing the settlement, along with authorized quotes from the two companies' CEOs, is actually included within the settlement.

Samsung clearly intends to use this settlement as evidence. The most important court proceeding since the trial is coming up this afternoon. Presumably, Samsung will use the HTC-Apple deal to argue that Apple should not receive an injunction. If Apple was fine licensing these patents to HTC for monetary compensation, the reasoning goes, it should be satisfied with money from Samsung. Apple, meanwhile, will argue for enhanced damages above and beyond the $1.05 billion verdict it won following the August trial. The company will seek injunctions barring Samsung products from market.

Ars will be covering the hearing this afternoon from federal court in San Jose.

I think it is very unlikely that Judge Koh will grant an injunction with evidence like this showing that there is monetary relief Apple is willing to accept. Without an injunction, being able to sell their products, Samsung will appeal the damages verdict and stretch out this litigation at least another year.

I think it is very unlikely that Judge Koh will grant an injunction with evidence like this showing that there is monetary relief Apple is willing to accept. Without an injunction, being able to sell their products, Samsung will appeal the damages verdict and stretch out this litigation at least another year.

Does this really show that Apple is willing to accept monetary relief? or does it show that Apple needed access to one or more HTC patents? Those aren't the same things.

"There's a specific "no helping the patent trolls" provision (pages 13-14 of the settlement). Increasingly, corporations are taking the "if you can't beat 'em, join 'em" attitude toward patent trolls, giving them patents or other types of assistance and then letting them loose on competitors. This deal specifically bars either party from taking any action to "materially assist in the assertion of Patents in a specific suit, action, or proceeding against the other Party's Covered Products... by a patent holding company, other patent enforcement entity, or a Third Party in which the first Party has an ownership interest." However, "mere membership" in a patent defense group like Allied Security Trust or RPX, or "mere participation" in "patent investment funds such as Intellectual Ventures" won't count."

One of the elements you have to establish for an injunction is irreparable injury. Apple argued that the infringing products irreparably injure its ability to sell iPhones. But now we see that they don't mean that, because they're including clauses where pinch-to-zoom is not considered a "Distinctive Apple User Experience." In other words, if Apple really was being irreparably injured by these infringements they never would have entered into such an agreement with HTC. Samsung will argue that the court, instead of issuing an injunction, enter an award for damages. The effect will be a judicially-created patent license.

"There's a specific "no helping the patent trolls" provision (pages 13-14 of the settlement). Increasingly, corporations are taking the "if you can't beat 'em, join 'em" attitude toward patent trolls, giving them patents or other types of assistance and then letting them loose on competitors. This deal specifically bars either party from taking any action to "materially assist in the assertion of Patents in a specific suit, action, or proceeding against the other Party's Covered Products... by a patent holding company, other patent enforcement entity, or a Third Party in which the first Party has an ownership interest." However, "mere membership" in a patent defense group like Allied Security Trust or RPX, or "mere participation" in "patent investment funds such as Intellectual Ventures" won't count."

They can't attack each other using patent troll shell games, and being part of one of the war chests or a investor in the greatest of patent trolls doesn't count as breaking the agreement.

Samsung seems a little hypocritical here. They've publicly said they don't wan't an HTC style settlement, yet they want to use Apple's willingness to settle with HTC to argue that an injunction should be avoided because they should be willing to settle with Samsung as well. Makes no sense.

One of the elements you have to establish for an injunction is irreparable injury. Apple argued that the infringing products irreparably injure its ability to sell iPhones. But now we see that they don't mean that, because they're including clauses where pinch-to-zoom is not considered a "Distinctive Apple User Experience." In other words, if Apple really was being irreparably injured by these infringements they never would have entered into such an agreement with HTC. Samsung will argue that the court, instead of issuing an injunction, enter an award for damages. The effect will be a judicially-created patent license.

Exactly, and it is a legal principal that if you can be compensated for your injury with money, then the injury isn't an "irreparable harm". The fact that Samsung and Apple continue to disagree and fight over the amount of damages/settlement doesn't diminish the fact that this litigation can be solved with money and does not require an injunction.

First of all I have to say that publishing this contract to the public by Samsung without the consent of the signers casts a damning light on Samsung's business ethics.(I know that the court will most likely publish it later, but they have the authority to do so.)

I read what's available at the moment and what I see is that there are two companies playing by the rules. In my opinion the contract basically says that both parties respect the other's IP and that they defined the way to deal with discrepancies, providing suitable ways to solve conflicts. At least this seems to be the intention.

If a patent is infringed by one party they agree with two possible ways to deal with it.There may be a suggestion how to design or work around the patent. If one party doesn't wan't or can't design around it there's a way to license it. (trade dress a copyright are different)By this way nobody can be shut out of a market because there's no way to e.g. create a touch device.And that's how the patent system should be and work and it worked for other industries for decades that way.

I had the luck to get involved into development in the automotive industries in the past.After the specs, functionality of a new product are defined my customers do a patent research.

After this is done a short risk analysis is created leading to a document pointing where to modify or workaround in the early stages of product development and where a license negotiation should be started. The date the latter is done is mainly dependent on the necessary secrecy the new product demands.

What I found most interesting is that licensing was often seen as the best way because it saves R&D resources and can speed up product development.

I often hear the patent system is broken. In my opinion it's not as long as companies deal with it in the right way.

Finally some thoughts about trade dress and copyright. All I have too say is that there's no way to copy the main design elements of a Mercedes or a Ferrari without getting sued.A lot of knock offs were taken down in the past and in my opinion that's absolutely OK.

Back to Samsung. I have learned that they take the same questionable stance in other industries like battery or display tech. You can call me old-fashioned or even retarded but I hope that they get cut to size for their repeating attempts to trick the system.

In addition I don't like the new development to attack standards, because those are the foundation all technological interoperability is based on.

I don't say that there's no need for a patent reform, but in my experience most of the problems are due to the players and not the game.This agreement seems to be a step into the right direction.

Samsung fail. Apple is Suing Samsung over design patents. This agreement clearly states that apple is NOT licensing any design patents to HTC. Samsung therefor has no evidence to show Apple licensed what it is suing Sammy over, therefor their motion to suspend potential injunction on those grounds is irrelevant and will likely be dismissed.

Even if they had, it's a recursive agreement, and apple is cross licensing things of value HTC was not willing to otherwise that also are not FRAND. Since Samsung has no such patents on the table in this case, Apple could readily argue they're licencing them ONLY to acquire in kind valuable patents as a mutual, and one-time agreement. Further as these patents are not FRAND encumbered, apple CAN legally pick and choose who it licenses to, and with wilful infringement confirmed, not accidental or surprise infringement, its unlikely for a judge to sympathize with Samsung about a crime they committed BEFORE apple was willing to make such a deal (times change, so do the reasons to allow one thing and not another). HTC also capitulated, Samsung did not, a glaring reason to discriminate, which apple legally can for these patents. The judge simply would need to ascertain the reasons apple chose to licence to HTC and not Samsung, and assuming they have at least some basis (they clearly do), she could rule apple need not license them to Samsung, and still bar sale.

At best this was a long shot. Since the deal seems to cont contain what Sammy was looking for, I call fail.

Of what? Their unwillingness to settle with Apple? I don't see how this HTC settlement helps.

For starters, that even Apple doesn't consider a lot of the stuff they're suing over to be "cloned" from iOS.

Or that apple is selectively choosing how it licences to others based on how competitive they are compared to apple. Similar to the FRAND stuff Samsung is going through themselves. I don't know if the patents in question are part of FRAND but I as a lawyer would certainly at least consider this path.

First of all I have to say that publishing this contract to the public by Samsung without the consent of the signers casts a damning light on Samsung's business ethics.(I know that the court will most likely publish it later, but they have the authority to do so.)

First of all I have to say that publishing this contract to the public by Samsung without the consent of the signers casts a damning light on Samsung's business ethics.(I know that the court will most likely publish it later, but they have the authority to do so.)*snip*

Are you trying to say Samsung did some corporate espionage, got a copy of the Apple-HTC contract, and proceeded to release it to the public and present it to the courts to overturn an injunction ?

That's beyond stupid. I didn't even bother to read whatever crap you wrote below that initial paragraph.

This is the last of the great trials. I think we are seeing the beginning of the end of this tactic. No one has won anything this is clearly a lose/lose situation for Apple and Samsung. Everyone is making money hand over fist and this just hurts everyone from companies focus to consumers experiences.

Copyright fights are next. I really think we need a campaign to have the Happy Birthday song's copyright revoked! The song is so old and the person credited with writing it didn't even write the song. Then we don't have to listen to the stupid Happy Birthday knock offs at the goofy restaurants!!!!

After the silly copyright mess is sort of balanced out then software and design patents have a chance of something correcting something.

I wonder if Apple realized undermining all the competing Android vendors allowed Samsung to focus their marketing on Apple instead of trying to differentiate themselves from other Android vendors. I really feel like Apple shot themselves in the foot by paving Samsung's way to the top through lawsuits that were difficult for HTC (small) or Motorola (on the brink of bankruptcy), but easily affordable for Samsung. Maybe they're noticing it might be good (for Apple) for Samsung to have some other Android phones to compete with.

I think it is very unlikely that Judge Koh will grant an injunction with evidence like this showing that there is monetary relief Apple is willing to accept. Without an injunction, being able to sell their products, Samsung will appeal the damages verdict and stretch out this litigation at least another year.

Does this really show that Apple is willing to accept monetary relief? or does it show that Apple needed access to one or more HTC patents? Those aren't the same things.

Those actually are the same things, effectively. Patents are considered property and have a monetary value. Licensing one via the method Apple used is an in kind transaction, considered the same as monetary compensation under the law.

I think it is very unlikely that Judge Koh will grant an injunction with evidence like this showing that there is monetary relief Apple is willing to accept. Without an injunction, being able to sell their products, Samsung will appeal the damages verdict and stretch out this litigation at least another year.

The cross-license was for utility patents only. Design patents were excluded, which includes some of the patents the jury found infringed. I don't think the HTC agreement is a slam dunk for Samsung's legal team, and I doubt Apple does either (or they wouldn't have done it).

Copyright fights are next. I really think we need a campaign to have the Happy Birthday song's copyright revoked! The song is so old and the person credited with writing it didn't even write the song. Then we don't have to listen to the stupid Happy Birthday knock offs at the goofy restaurants!!!!

I had no idea the birthday song was copyrighted. Until now. I guess I learn new absurd things about this world everyday ...

'Bear in mind, that doesn't mean Apple is saying it can't sue over features like "pinch to zoom." These are the terms for a company that has agreed to pay Apple for its patents, not an unlicensed competitor.'

This could be my ignorance, but if financial terms are redacted how can the author assert that HTC pays for Apples patents?

Copyright fights are next. I really think we need a campaign to have the Happy Birthday song's copyright revoked! The song is so old and the person credited with writing it didn't even write the song. Then we don't have to listen to the stupid Happy Birthday knock offs at the goofy restaurants!!!!

I had no idea the birthday song was copyrighted. Until now. I guess I learn new absurd things about this world everyday ...

One of the elements you have to establish for an injunction is irreparable injury. Apple argued that the infringing products irreparably injure its ability to sell iPhones. But now we see that they don't mean that, because they're including clauses where pinch-to-zoom is not considered a "Distinctive Apple User Experience." In other words, if Apple really was being irreparably injured by these infringements they never would have entered into such an agreement with HTC. Samsung will argue that the court, instead of issuing an injunction, enter an award for damages. The effect will be a judicially-created patent license.

Apple isn't suing Samsung over Pinch to Zoom. They sued them over default phone designs, Icons, bounce-back, and several other things. Everyone likes to forget, but apple didn;t sue sammy over utility patents, they sued over design patents, and brand representation. Trademark law (which governs Design patents) is very different from what others know to be "patent law" covering utility/method patents. Not one of Apple's design patents were licensed to HTC in this settlement. The allowance on continued sale of infringing designs is a measurable harm, there's very easy ways to show that in law. "irreperabble" doesn't necesarly mean financial either.

This is the last of the great trials. I think we are seeing the beginning of the end of this tactic. No one has won anything this is clearly a lose/lose situation for Apple and Samsung. Everyone is making money hand over fist and this just hurts everyone from companies focus to consumers experiences.

Copyright fights are next. I really think we need a campaign to have the Happy Birthday song's copyright revoked! The song is so old and the person credited with writing it didn't even write the song. Then we don't have to listen to the stupid Happy Birthday knock offs at the goofy restaurants!!!!

After the silly copyright mess is sort of balanced out then software and design patents have a chance of something correcting something.

I disagree that no one has won.

Microsoft wouldn't have put nearly as much effort into making windows phone os so unique (in mostly good ways) if they didn't believe they too would be in apples scope for litigation.

The fact of the matter is that iOS helped inspired android, but if apple just let the mimicry go unquestioned, neither google, apple, or Microsoft would have had much incentive to REALLY think outside the box.

Right now we have a great selection of mobile OSes as google and Microsoft dig deep to not seem like copy cats.

First of all I have to say that publishing this contract to the public by Samsung without the consent of the signers casts a damning light on Samsung's business ethics.(I know that the court will most likely publish it later, but they have the authority to do so.)*snip*

Are you trying to say Samsung did some corporate espionage, got a copy of the Apple-HTC contract, and proceeded to release it to the public and present it to the courts to overturn an injunction ?

That's beyond stupid. I didn't even bother to read whatever crap you wrote below that initial paragraph.

No, according to allthingsd.com Samsung has entered a redacted version version of the agreement into the public record.

I simply wanted to point out that the redaction and the release of such a document has to be based on a court order and not be done by a legal team trying to get an advantage.

If this point isn't valid for You it's Ok not to read the rest of the post.

Microsoft wouldn't have put nearly as much effort into making windows phone os so unique (in mostly good ways) if they didn't believe they too would be in apples scope for litigation.

My point name all the lawsuits M$ has fought? I can only think of TomTom. They just wave the patent information and make a deal. Not this suing everyone. M$ has a different tactic that works better for them, but I hope NO ONE else picks up. M$ FUD

Apple isn't suing Samsung over Pinch to Zoom. They sued them over default phone designs, Icons, bounce-back, and several other things. Everyone likes to forget, but apple didn;t sue sammy over utility patents, they sued over design patents, and brand representation. Trademark law (which governs Design patents) is very different from what others know to be "patent law" covering utility/method patents. Not one of Apple's design patents were licensed to HTC in this settlement. The allowance on continued sale of infringing designs is a measurable harm, there's very easy ways to show that in law. "irreperabble" doesn't necesarly mean financial either.

Let's keep things straight, here:

The lawsuit is over BOTHdesign and utility patents, with the jury finding infringement of US Patent Nos. 7,469,381, 7,844,915, 7,864,163, D593087, and D604305.

Trademark and trade-dress often feel similar to design patents, but that body of law is different and distinct from the law of design patents.

One of the elements you have to establish for an injunction is irreparable injury. Apple argued that the infringing products irreparably injure its ability to sell iPhones. But now we see that they don't mean that, because they're including clauses where pinch-to-zoom is not considered a "Distinctive Apple User Experience."

Sales figures don't figure into whether the harm is "irreparable" or not? It makes sense to me to argue that HTC's sales numbers don't hurt Apple nearly as seriously as Samsung's do.

'...This could be my ignorance, but if financial terms are redacted how can the author assert that HTC pays for Apples patents?

I think the point is that Apple was willing to license the patents for something, when they have previously claimed certain things never will be for any money. Although I haven't read the full thing to see whether the relevant ones are there in this agreement.

*Something that annoys me about all this though is the constant Samsung hating in forums by people who have no idea about then. Samsung is not a little minnow** in all this, they are in some ways, financially and the wide markets they trade in, more powerful than Apple. Apple is very efficient in getting profit from turnover but they are very limited in markets.

Samsung innovate and patent a lot of things in areas people couldn't imagine and were doing so with smartphones before Apple even thought of making one. Samsung have plenty of patents they would never license to anyone and to be honest knowing that should have respected Apples designs a little more but quite frankly this has always been two bullies facing up to each other.

Samsung will never pay a penny because Apple currently have no choice but to keep on buying $billions of parts from them while ever no one else can produce them in the quality or volume they can. Apple will just pay Samsung a bit less while Samsung raises their prices to claw some back. They have no choice but to carry on fighting but the only thing that really bothers them is the injunction against sales.

One of the elements you have to establish for an injunction is irreparable injury. Apple argued that the infringing products irreparably injure its ability to sell iPhones. But now we see that they don't mean that, because they're including clauses where pinch-to-zoom is not considered a "Distinctive Apple User Experience."

Sales figures don't figure into whether the harm is "irreparable" or not? It makes sense to me to argue that HTC's sales numbers don't hurt Apple nearly as seriously as Samsung's do.

Irreparable harm is more often found in things like loss of consumer goodwill, damage to reputation, being denied entry into a market, losing a first-actor-in-a-market advantage; all of those relate to a company's bottom line, but are different from being on the market with a product but a consumer picking an alternative product. In this case, HTC is less of an economic threat as a competitor than Samsung, and that makes Apple less likely to settle with Samsung, but the degree of profits lost to a competitor is not part of the injunction determination. To evaluate a preliminary injunction here, in comparison to either HTC or Samsung, Apple is not being denied a market, Samsung isn't assaulting Apple's reputation, and Apple obviously retains its consumer goodwill - the elements to issue an injunction seem lacking, to me.

First of all I have to say that publishing this contract to the public by Samsung without the consent of the signers casts a damning light on Samsung's business ethics.(I know that the court will most likely publish it later, but they have the authority to do so.)*snip*

Are you trying to say Samsung did some corporate espionage, got a copy of the Apple-HTC contract, and proceeded to release it to the public and present it to the courts to overturn an injunction ?

That's beyond stupid. I didn't even bother to read whatever crap you wrote below that initial paragraph.

No, according to allthingsd.com Samsung has entered a redacted version version of the agreement into the public record.

I simply wanted to point out that the redaction and the release of such a document has to be based on a court order and not be done by a legal team trying to get an advantage.

If this point isn't valid for You it's Ok not to read the rest of the post.

Dude, the version that Samsung released is the version that Apple and HTC agreed to submit to the court with redaction. You can obtain the same document from the court as the judge made it public. Hence the need for HTC and Apple to redact certain parts. If Samsung had actually done what you are accusing them of, they would be in contempt of court and the lawyers would probably be censured if not lose their license. Professional lawyers don't throw away their careers doing stupid stuff like that.

Samsung fail. Apple is Suing Samsung over design patents. This agreement clearly states that apple is NOT licensing any design patents to HTC. Samsung therefor has no evidence to show Apple licensed what it is suing Sammy over, therefor their motion to suspend potential injunction on those grounds is irrelevant and will likely be dismissed.

Even if they had, it's a recursive agreement, and apple is cross licensing things of value HTC was not willing to otherwise that also are not FRAND. Since Samsung has no such patents on the table in this case, Apple could readily argue they're licencing them ONLY to acquire in kind valuable patents as a mutual, and one-time agreement. Further as these patents are not FRAND encumbered, apple CAN legally pick and choose who it licenses to, and with wilful infringement confirmed, not accidental or surprise infringement, its unlikely for a judge to sympathize with Samsung about a crime they committed BEFORE apple was willing to make such a deal (times change, so do the reasons to allow one thing and not another). HTC also capitulated, Samsung did not, a glaring reason to discriminate, which apple legally can for these patents. The judge simply would need to ascertain the reasons apple chose to licence to HTC and not Samsung, and assuming they have at least some basis (they clearly do), she could rule apple need not license them to Samsung, and still bar sale.

At best this was a long shot. Since the deal seems to cont contain what Sammy was looking for, I call fail.

Apple isn't suing Samsung over Pinch to Zoom. They sued them over default phone designs, Icons, bounce-back, and several other things. Everyone likes to forget, but apple didn;t sue sammy over utility patents, they sued over design patents, and brand representation. Trademark law (which governs Design patents) is very different from what others know to be "patent law" covering utility/method patents. Not one of Apple's design patents were licensed to HTC in this settlement. The allowance on continued sale of infringing designs is a measurable harm, there's very easy ways to show that in law. "irreperabble" doesn't necesarly mean financial either.

Let's keep things straight, here:

The lawsuit is over BOTHdesign and utility patents, with the jury finding infringement of US Patent Nos. 7,469,381, 7,844,915, 7,864,163, D593087, and D604305.

Trademark and trade-dress often feel similar to design patents, but that body of law is different and distinct from the law of design patents.